Variance Process

The BLM's Solar Energy Program allows for responsible utility-scale solar energy development in variance areas outside of SEZs in accordance with the established variance process. These variance areas are considered lands “outside of designated leasing areas” under the ROW regulations (43 CFR 2800) published by the BLM on December 19, 2016. The program also establishes programmatic design features that are required for all utility-scale solar energy development on BLM-administered lands to avoid, minimize, and mitigate adverse impacts on resources of concern.

The BLM will consider ROW applications for utility-scale solar energy development in variance areas on a case-by-case basis based on environmental considerations; coordination with appropriate Federal, State, and local agencies and tribes; and public outreach. The BLM will use current information and best available science in its evaluation of ROW applications in variance areas.

The responsibility for demonstrating to the BLM and other coordinating parties that a proposal in a variance area will avoid, minimize, and/or mitigate, as necessary, sensitive resources will rest with the applicant. The applicant is also expected to demonstrate that the proposed project is compatible with State and local plans and is capable of acquiring all required permits and authorities to implement the project. Applicants applying for a ROW in variance areas assume all risk associated with their application and should understand that their financial commitments in connection with their applications will not be a factor in the BLM's evaluation process.

How BLM Processes Applications in Variance Areas

The regulations published in December 2016 provide for the issuance of a solar energy ROW “grant” (43 CFR 2804) by the BLM in response to a ROW application on lands outside of DLAs. If the BLM determines that competition exists outside of designated leasing areas (e.g., in variance areas), the BLM has the regulatory authority to use competitive bid procedures to resolve competing ROW applications (43 CFR 2804.23). Multiple applications for the same lands can provide an indication of the need to consider a competitive process. The purpose of a competitive process for ROW applications under the regulations is to determine which ROW application would be processed. In making this determination, the BLM may consider variables such as public interest, market demand for solar energy development in the region (including markets in other states), expressions of interest from other parties, authorized use and/or ownership of adjoining lands, and the purpose of the project.

Applicability of the Solar PEIS Record of Decision (ROD) for Variance Areas

All solar energy ROW applications received before October 28, 2011, for lands in Variance Areas (defined as “pending” applications) are processed consistent with existing land use plan decisions in place prior to amendment by the Solar PEIS ROD; these applications are not subject to any decisions adopted by the ROD.

All solar energy ROW applications received after October 28, 2011, for lands in Variance Areas (defined as “new” applications) are subject to the decisions adopted in the Solar PEIS ROD.

Solar energy ROW applications the 10.8 million acre Desert Renewable Energy Conservation Plan (DRECP) area in California are now subject to the decisions adopted in the ROD for the DRECP Environmental Impact Statement, approved in September 2016.